ATULBHAI VITHALBHAI BHANDERIversusSTATE OF GUJARAT

                         [2023] 4 S.C.R. 239                              239


             ATULBHAI VITHALBHAI BHANDERI                                 A
                                  v.
                       STATE OF GUJARAT
                 (Criminal Appeal No. 1390 of 2023)
                                                                          B
                            MAY 04, 2023
 [AJAY RASTOGI AND AHSANUDDIN AMANULLAH, JJ.]
        Bail : Grant of – Appellant involved in intimidating and
threatening the victim in connivance with the main accused no.1
running an organised crime syndicate for extorting money and land-        C
grabbing by threatening people – 59 cases registered against the
accused no.1 – FIR against appellant and others for offence
punishable under the 2015 Act and the Penal Code – Bail application
by the appellant during pendency of the trial – Dismissed by the
High Court – On appeal, held: Discretion must be exercised                D
judiciously – Keeping in view the appellant’s alleged role, no
inclination to exercise discretion in his favour – Out of the twelve
charge-sheeted accused, six co-accused have not been granted bail,
five have availed the benefit of default bail and only one is on
regular bail, thus, interference not called for – Allegations levelled
and the statements of the witnesses have been perused carefully –         E
In view thereof, the prayer for grant of bail to the appellant is
rejected – However, as submitted by the State, upon the completion
of recording of statements of the protected witnesses, the appellant
is at liberty to renew his plea for bail – Gujarat Control of Terrorism
and Organised Crime Act, 2015 – ss. 3(1), 3(2), 3(3), 3(4) and 3(5)       F
and 4 – Penal Code, 1860 – ss. 384, 385, 386, 387, 506(1), 506(2),
507, 201, 120B.
      Vilas Pandurang Pawar v State of Maharashtra, (2012)
      8 SCC 795 : [2012] 8 SCR 270 – relied on.
      State of Gujarat v Sandip Omprakash Gupta, 2022 SCC                 G
      OnLine SC 1727; State of Maharashtra v Shiva alias
      Shivaji Ramaji Sonawane, (2015) 14 SCC 272 : [2015]
      9 SCR 211; Gudikanti Narasimhulu v Public Prosecutor,
      (1978) 1 SCC 240 : [1978] 2 SCR 371; Niranjan Singh
      v Prabhakar Rajaram Kharote, (1980) 2 SCC 559 :                     H
                                 239
240            SUPREME COURT REPORTS                          [2023] 4 S.C.R.


A           [1980] 3 SCR 15; Ramesh Bhavan Rathod v Vishanbhai
            Hirabhai Makwana (Koli) (2021) 6 SCC 230 – referred
            to.
                              Case Law Reference
      [2015] 9 SCR 211                   referred to              Para 5
B
      [1978] 2 SCR 371                   referred to              Para 9
      [1980] 3 SCR 15                    referred to              Para 10
      [2012] 8 SCR 270                   relied on                Para 11
      (2021) 6 SCC 230                   referred to              Para 12
C
            CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
      1390 of 2023.
            From the Judgment and Order dated 07.09.2022 of the High Court
      of Gujarat at Ahmedabad in CRLMA No. 22475 of 2021.
D            Maninder Singh, Ms. Nitya Ramakrishnan, Sr. Advs., E. C.
      Agrawala, Sunil Murarka, Ankur Saigal, Gunnam Venkantewara Rao,
      Ms. S. Lakshmi Iyer, Ms. Anwesha Padhi, Pradhuman Gohil, Mrs. Taruna
      Singh Gohil, Ms. Ranu Purohit, Alapati Sahithya Krishna, Ms. Nidhi Mittal,
      Advs. for the Appellant.
E         S. V. Raju, ASG, Ms. Swati Ghildiyal, Ms. Devyani Bhatt, Praveen
      Kumar Singh, Advs. for the Respondent.
            The Judgment of the Court was delivered by
            AHSANUDDIN AMANULLAH, J.
F              Leave granted.
            2. The present Appeal is directed against the Final Judgment and
      Order dated 07.09.2022 (hereinafter re- ferred to as the “Impugned
      Judgment”) passed by the High Court of Gujarat at Ahmedabad
      (hereinafter referred to as the “High Court”) in Criminal Miscellaneous
G     Application No. 22475 of 2021, by which the prayer for release of the
      Appellant on bail has been dismissed.
            THE FACTUAL PRISM:
           3. The Appellant, along with others, is accused in FIR Cr No.I-
      11202008202186 of 2020 registered with the “A” Division Police Station,
H
ATULBHAI VITHALBHAI BHANDERI v. STATE OF GUJARAT                                241
          [AHSANUDDIN AMANULLAH, J.]

Jamnagar in the State of Gujarat for offences punishable under Sections         A
3(1), 3(2), 3(3), 3(4) and 3(5) and 4 of the Gujarat Control of Terrorism
and Organised Crime Act, 2015 (hereinafter referred to as the “GCTOC
Act”) read with Sections 384, 385, 386, 387, 506(1), 506(2), 507, 201,
120B of the Indian Penal Code, 1860 (hereinafter referred to as the
“IPC”). The Appellant is arrayed as accused No.4 in the said FIR and is
                                                                                B
said to be involved in intimidating and threatening the victim in connivance
with the main accused no.1 Jaysukh @ Jayesh Muljibhai Ranpara (Patel),
running an organised crime syndicate for the purpose, with the intention
to extort money and in land-grabbing by threatening people at large. As
per the FIR details, 59 cases are registered against the said accused
no.1. It is alleged that the Appellant threatened the victim and concerned      C
witnesses to cancel the land deal pertaining to survey No.961 or to pay
a sum of Rs.1,00,00,000/- (Rupees One Crore) to the Appellant, which
they refused. The allegation against the accused no.1 is of threatening
the victim. The role of the appellant is that he was involved in intimidating
and threatening the victim on behalf of the accused no.1 for ensuring the
                                                                                D
victim’s compliance with the extortion demands. It is alleged that the
appellant owns properties derived from funds of organised crimes. Further,
it is alleged that from the enquiry, it is revealed that the Appellant was
directly involved in collecting the sum(s) extorted from the victim in the
city, and that he has also been found to be involved in passing on
information which is likely to assist the crime syndicate in its activities,    E
thereby abetting the actions of the gang.
      SUBMISSIONS BY THE APPELLANT:
      4. Learned counsel for the Appellant submitted that there are
eight other First Information Reports in which he has been charge-
sheeted, out of the which seven are prior to the year 2015 and one is of        F
the year 2019. It was contended that the section(s), under which the
FIR in question has been lodged, do not indicate his involvement in any
organised crime. And thus, without any basis, he has been made an
accused in the present case.
       5. Learned counsel further submitted that as per the allegations         G
made in the FIR, the Appellant had arranged a telephonic talk between
the accused no.1, the complainant as well as one Bhagwanjibhai
Kanjariya; that upon the complainant neither cancelling the deed of the
plot nor paying the purported extortion amount of Rs.1,00,00,000/- (Rupees
One Crore), the Appellant along with the accused no.1 hatched a                 H
242             SUPREME COURT REPORTS                           [2023] 4 S.C.R.


A     conspiracy and sent six persons to the residence of the complainant and
      they fired three rounds of bullets. This, according to learned counsel, is
      false. As per the submission, the four persons who gave the complaint
      before the police, on the very next day of the FIR being lodged, had
      stated that the Appellant did not make any telephonic call to the accused
      no.1. Learned counsel drew the attention of this Court to the Judgment
B
      in State of Gujarat v Sandip Omprakash Gupta, 2022 SCC OnLine
      SC 1727 dated 15.12.2022, the relevant portions being Paragraphs No.
      49, 56 and 57, which has reiterated the dictum laid down by this Court in
      State of Maharashtra v Shiva alias Shivaji Ramaji Sonawane, (2015)
      14 SCC 272, which stipulates that the offence of “organised crime”
C     could be said to have been constituted by at least one incident of
      continuation apart from continuing unlawful activity evidenced by more
      than one chargesheets in the preceding ten years.
             6. Thus, it was submitted that the last case, prior to the present
      one, was registered against the Appellant on 14.11.2019, i.e., before the
D     GCTOC Act came into force in the State of Gujarat (as the GCTOC
      Act came into force in the State of Gujarat w.e.f. 01.12.2019). Learned
      counsel further submitted that out of sixteen accused, four accused are
      absconding and, in total, twelve accused are charge-sheeted, out of which
      six accused are on bail. Thus, even on the ground of parity, it is submitted
      that the Appellant be also enlarged on bail.
E
            SUBMISSIONS OF THE RESPONDENT-STATE:
             7. Mr S V Raju, the learned Additional Solicitor General of India,
      appearing for the State, submits that the Appellant-accused was well-
      acquainted with accused no.1 Jaysukh @ Jayesh Muljibhai Ranpara
F     (Patel). Mr Raju submitted that the Appellant became close to accused
      no.1 Jaysukh @ Jayesh Muljibhai Ranpara (Patel) during the 2015
      Municipal Election and was an accused in the Patel Reservation
      Movement riots. It was contended that apart from the present case,
      eight other cases have been registered against the Appellant and he is
      trying to pressurize the authorities by spreading false news with regard
G     to land deal relating to survey No.961 being cancelled; but when his
      efforts failed, witnesses were threatened and intimidated to cancel the
      land deal(s). It was further submitted that the Appellant facilitated the
      first meeting on 01.11.2019 between the accused no.1 and PWs No. 5
      and 6 and others and when the extortion money was not paid, another
H     meeting was conducted in which Rs. 2,19,00,000/- (Rupees Two Crores
ATULBHAI VITHALBHAI BHANDERI v. STATE OF GUJARAT                                243
          [AHSANUDDIN AMANULLAH, J.]

and Nineteen Lakhs) was paid to the members of the organised crime              A
syndicate. Again, on 20.02.2022 after the arrest of the Appellant, his son
is accused of facilitating a call between PW 5 and accused no.1 and
extort ing Rs. 25,00,000/- (Rupees Twenty Five Lakhs). It was submitted
that the Court may consider the prayer for bail only after the examination
of protected witnesses, whose statements directly prove the involvement
                                                                                B
of the Appellant in the crime(s). Moreover, it was submitted that out of
the six co-accused released on bail, five are out on default bail, and only
one accused had se- cured regular bail.
      ANALYSIS, REASONING AND CONCLUSION:
        8. Having examined the rival contentions, the Court does not            C
consider it necessary to go into the legal as- pect pertaining to the
applicability of the GCTOC Act in praesenti, as the current Appeal has
been filed only for the purpose of seeking bail during the pendency of
the trial.
        9. Had there been no other case against the Appellant and no            D
material, at least prima facie, to indicate his regular participation in any
crime, the Court could have considered his prayer, but keeping in view
his al- leged role, we are not inclined to exercise discretion in his favour,
for now. When we speak of discretion, we have in mind “judicial
discretion” as explained in Gudikanti Narasimhulu v Public
Prosecutor, (1978) 1 SCC 240:                                                   E

      “3. What, then, is “judicial discretion” in this bail context? In
      the elegant words of Ben- jamin Cardozo [ The Nature of the
      Judicial Process — Yale University Press (1921)]:
      “The Judge, even when he is free, is still not wholly free. He            F
      is not to innovate at pleasure. He is not a knight-errant
      roaming at will in pursuit of his own ideal of beauty or of
      good- ness. He is to draw his inspiration from conse- crated
      principles. He is not to yield to spas- modic sentiment, to vague
      and unregulated benevolence. He is to exercise a discretion
      in- formed by tradition, methodized by analogy, disciplined               G
      by system, and subordinated to “the primordial necessity of
      order in the social life”. Wide enough in all conscience is the
      field of discretion that remains.”
      Even so it is useful to notice the tart terms of Lord Camden
      that [ 1 Bovu, Law Dict., Rawles’ III Revision p. 885 — quoted            H
244            SUPREME COURT REPORTS                         [2023] 4 S.C.R.


A           in Judi- cial Discretion — National College of the State
            Judiciary, Rano, Nevada p. 14] “the discretion of a Judge is
            the law of tyrants: it is always unknown, it is different in
            different men; it is casual, and depends upon constitution,
            tem- per and passion. In the best, it is oftentimes caprice; in
            the worst, it is every vice, folly and passion to which human
B
            nature is liable. “
            4. Some jurists have regarded the term “judi- cial discretion”
            as a misnomer. Nevertheless, the vesting of discretion is the
            unspoken but inescapable, silent command of our judicial
            system, and those who exercise it will remember that discretion,
C           when applied to a Court of Justice, means sound discretion
            guided by law. It must be governed by rule, not by humour; it
            must not be arbitrary, vague and fanciful, but legal and
            regular.
            An appeal to a Judge’s discretion is an appeal to his judicial
D           conscience. The discretion must be exercised, not in opposition
            to, but in ac- cordance with, established principles of law.
            [Judicial discretion, (ibid) p. 33]”
                                                         (emphasis supplied)

E           10. The fact, that out of the twelve charge-sheeted accused, six
      co-accused have not been granted bail, five have availed the benefit of
      default bail and only one is on regular bail, have also persuaded this
      Court not to interfere. We have also considered the allegations levelled
      and perused carefully the statements of the witnesses shown to the
      Court. In Niranjan Singh v Prabhakar Rajaram Kharote, (1980) 2
F     SCC 559, this Court opined:
            “3… Detailed examination of the evidence and elaborate
            documentation of the merits should be avoided while passing
            orders on bail applica- tions. No party should have the
            impression that his case has been prejudiced. To be satisfied
G           about a prima facie case is needed but it is not the same as an
            exhaustive exploration of the merits in the order itself.”
                                                         (emphasis supplied)
           11. In Vilas Pandurang Pawar v State of Maharashtra, (2012)
      8 SCC 795, this Court observed “…Moreover, while considering the
H
ATULBHAI VITHALBHAI BHANDERI v. STATE OF GUJARAT                                  245
          [AHSANUDDIN AMANULLAH, J.]

application for bail, scope for appreciation of evidence and other                A
material on record is limited. The court is not expected to indulge in
critical analysis of the evidence on record…”. We are in respectful
agreement with the law exposited in these cases. We consciously refrain
from detailing our views on the merits of the matter.
      12. Insofar as parity is concerned, we need only reproduce the              B
apt observations from Ramesh Bhavan Rathod v Vishanbhai Hirabhai
Makwana (Koli), (2021) 6 SCC 230, of which we take note:
       “26.… Parity while granting bail must focus upon the role of
       the accused. Merely observing that another accused who was
       granted bail was armed with a similar weapon is not sufficient             C
       to determine whether a case for the grant of bail on the basis
       of parity has been estab- lished. In deciding the aspect of
       parity, the role attached to the accused, their position in
       relation to the incident and to the victims is of utmost
       importance. The High Court has pro- ceeded on the basis of
       parity on a simplistic assessment as noted above, which again              D
       cannot pass muster under the law.”
                                                        (emphasis supplied)
       13. In the facts and circumstances, at the present juncture, this
Court is not inclined to allow the prayer for enlarging the Appellant on          E
bail. Accordingly, the prayer for bail is hereby rejected.
       14. However, the stand taken on behalf of the State of Gujarat is
that the prayer for bail of the Appellant may be considered only after the
protected witnesses are examined. In this context, learned Additional
Solicitor General has indicated that six months’ time be granted for              F
recording statements of the protected witnesses.
       15. In such light, it is observed that upon the completion of recording
of statements of the said protected witnesses, the Appellant is at liberty
to renew his plea for bail, if so advised.
      16. The Appeal stands disposed of accordingly, with liberty afore           G
granted. Pending application(s), if any, stand consigned to records.

Nidhi Jain                                                  Appeal disposed of.
(Assisted by : Rakhi, LCRA)

                                                                                  H